Third District Court of Appeal
State of Florida
Opinion filed September 2, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-0873
Lower Tribunal No. 19-29387-CA-01
Florida Insurance Guaranty Association,
Appellant,
vs.
Danielle Simmons,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge.
Conroy Simberg, and Hinda Klein (Hollywood), for appellant.
Cankaya Law, and Deniz S. Cankaya (Fort Lauderdale), for appellee.
Before FERNANDEZ, MILLER and LOBREE, JJ.
FERNANDEZ, J.
Florida Insurance Guaranty Association (“FIGA”) appeals the trial
court’s “Order Granting Plaintiff’s Motion to Substitute Defendant and
Enforce Settlement” and “Omnibus Order on [FIGA’s] Motion for Rehearing
and/or Motion for Clarification Filed on November 26, 2024, and Plaintiff’s
Second Motion to Enforce Settlement, Motion for Common Law Interest, and
Motion for Sanctions filed March 3, 2025.” We reverse and remand for an
evidentiary hearing to determine whether any payments to counsel were for
attorney’s fees and, if not, whether those portions were payments that
resulted from coverage by the insurance policy.
FACTS AND PROCEDURAL HISTORY
In October 2019, Danielle Simmons (“Simmons”), the insured, sued
her homeowner’s carrier, United Property & Casualty Insurance Company
(“UPC”) for benefits Simmons sought due to Hurricane Irma damages to her
property. On November 11, 2022, the parties mediated and entered into a
settlement agreement for a lump sum of $75,000.00. The mediator provided
a written confirmation of the agreement (“the Mediation Agreement”) which
stated that the claim was settled for $75,000.00; that the settlement was
inclusive of all claims; and that “[u]nless otherwise indicated herein, each
Party is responsible for its own attorney’s fees and costs incurred in
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connection with this matter, including the cost of mediation.” The Mediation
Agreement did not specify that any portion of the $75,000.00 consisted of
attorney’s fees pursuant to section 627.428, Florida Statutes (2022). 1
After mediation was completed, defense counsel drafted a “General
Release of All Claims,” which was executed by both parties. The release
indicated that payment of $75,000.00 would be issued via three checks: one
$37,500 check payable to Simmons, Joe Simmons, Stellar Public Adjusting
Services, and Rushmore Loan Management Services; one $22,500 check
payable to current counsel, Deniz S. Cankaya, P.A.; and one check payable
to former counsel, The Diener Law Firm, P.A. for $15,000.00, which had an
attorney’s fee lien on the proceeds. The release stated, “This payment is
inclusive of costs, attorney fees, statutory interest; . . . and/or any other
damages RELEASOR has claimed or may claim in the future against UPC
on the subject of claims.”
After the settlement, but before payment was issued, UPC was
declared insolvent. Thus, FIGA stepped in as the statutory guarantor.
Simmons moved to substitute FIGA as the party defendant in her case and
to enforce the settlement agreement against FIGA. Simmons argued that
1
Section 627.48, Florida Statutes, was in effect at the time of the settlement but has since been repealed. See ch. 2023-15, §§ 11, Laws of Fla. (effective March 24, 2023).
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FIGA was now deemed to be the insurer, it had the same obligation to pay
the settlement as UPC did. She stated that FIGA had notified her it would
not be honoring the settlement because it believed it did not owe attorneys’
fees pursuant to the attorney fee provision found in section 627.48, as it
existed at the time of the settlement. Simmons contended that the court
should enforce the full settlement against FIGA because there was no
attorney fee claim being made under section 627.48.
FIGA responded that it did not pay the $37,500.00 designated for
Simmons’ present and former counsel and the public adjuster, contending
that this part included statutory attorney’s fees which are not payable as a
covered claim under section 631.54, Florida Statutes (2022). FIGA cited
Petty v. Florida Insurance Guaranty Association, 80 So. 3d 313 (Fla. 2012),
in which the Florida Supreme Court held that statutory attorneys’ fees are
not part of the insured’s “covered claim” under the FIGA statute because they
do not arise from the insolvent carrier’s insurance policy. In support of its
argument, FIGA cited the mediator’s email to the parties confirming the
settlement where the mediator stated:
This will confirm settlement of all potential aspects of this claim
in the total amount of $75,000, new money, inclusive of fees
and costs . . . Settlement expressly includes the charging
lien from The Diener Firm . . . I am attaching a proposed form
of agreement for your very careful review and editing as you see
fit. For example, feel free to play with the payees in light of the
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charging lien as I have penciled in Diener as one of the payees
on the fee check.
(emphasis added). FIGA further cited the “General Release of All Claims”
that Simmons signed in which she agreed to release UPC from:
. . . any and all claims arising out of or related to the handling,
investigation, and settlement of any claims under the Policy,
whether sounding in tort or contract to include, but not be limited
to, any claims under the Policy . . . related to the loss described
herein and the consequences thereof. This payment is
inclusive of costs; attorney fees; statutory interest; additional
living expenses; taxable and nontaxable costs; any depreciation;
and/or any other damages RELEASOR has claimed or may
claim in the future against UPC on the subject claims.
(emphasis added).
At the hearing on Simmons’ motion, the court reviewed the settlement
emails, the Mediation Agreement, and the General Release. Simmons
argued that Petty was not controlling because in Petty, the fees in question
were those that would be awarded by the trial court after the insured
prevailed in a claim against the insurer; in Simmons’s case, however, the
case was resolved by settlement. Simmons’s counsel asserted that there
was no discussion about entitlement to fees at the mediation and that
Simmons paid her own attorneys’ fees out of the lump-sum settlement.
Simmons argued that there was no mention of section 627.48 in the release
and that it was the parties’ intent that each side bear their own fees and
costs. Simmons further explained that a portion of the $22,500.00 payable
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to counsel’s firm included payment for Simmons’s public adjuster’s
commission.
FIGA’S counsel responded that Simmons was paid $37,500 and that
FIGA is not a substitute insurer. It contended that under the FIGA statute,
FIGA owes only “covered claims” that excludes insureds’ attorney’s fees.
Counsel argued that while entitlement to section 627.428, Florida Statutes,
fees is triggered by either a judgment or settlement, which is considered to
be a confession of judgment, the mediation agreement apportioned the
settlement between insurance benefits and attorneys’ fees, and the mediator
confirmed that the settlement included Simmons’s fee claim.
The trial court found that the settlement agreement was “very generic”
and lump sum in nature; the breakdown was not clear regarding a statutory
fee award; the public adjuster had not been paid; and the agreement did not
state which part was allocated to attorney’s fees. The court found that under
these “unusual circumstances and facts,” the settlement agreement should
be enforced. Thus, the trial court enforced the $75,000.00 settlement
agreement entered into by Simmons and UPC before UPC’s insolvency.
The court entered an order granting Simmons’s motion to enforce the
settlement against FIGA “for the reasons stated on the record.” FIGA moved
for rehearing and/or clarification of the order, contending the court did not
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address the issue of FIGA’S liability for interest, which FIGA is exempt from
paying pursuant to section 631.57(1)(a)4.(b), Florida Statutes. The trial court
granted the motion for rehearing and/or clarification and denied Simmons’
request for sanctions and interest. FIGA now appeals.
STANDARD OF REVIEW
The standard of review of an order compelling payment of a settlement,
which includes amounts not payable as a matter of law, is de novo. Florida
Ins. Guar. Ass’n v. Reyes, 303 So. 3d 1248, 1251 (Fla. 2d DCA 2020).
ANALYSIS
FIGA contends that the trial court erred in compelling it to pay
Simmons’ attorney’s fees because these fees were not part of Simmons’
“covered claim” payable by FIGA. We agree.
When FIGA was substituted as the defendant in Simmons’ underlying
case after UPC became insolvent, FIGA became responsible only for paying
UPC’s “covered claims.” See § 631.57(1)(a)4.(b), Fla. Stat. (2022); Alessio
ex rel. Estate of Garza Fla. Ins. Guar. Ass’n, 91 So. 3d 910, 913 (Fla. 2d
DCA 2012). A “covered claim” means an unpaid claim, . . ., which arises out
of, and is within the coverage, and not in excess of, the applicable limits of
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an insurance policy to which this part applies, issued by an insurer, if such
insurer becomes an insolvent insurer . . .” § 631.54(4), Fla. Stat. (2022).
Consistent with that statutory limitation, Florida appellate courts have
held that FIGA cannot be compelled to pay an insured’s attorney’s fees
where the obligation arises from a post-loss settlement agreement instead
of from coverage within the policy. See Florida Ins. Guar. Ass’n v. Ramos,
427 So. 3d 187 (Fla. 3d DCA 2026); Florida Ins. Guar. Ass’n v. Hintz, 2026
WL 1742205 (Fla. 4th DCA June 17, 2026); Florida Ins. Guar. Ass’n v.
Waterfire Rest., LLC, 427 So. 3d 996, 999 (Fla. 4th DCA 2026); Florida Ins.
Guar. Ass’n v. Cadet, 431 So. 3d 276, 278 (Fla. 4th DCA 2026); Florida Ins.
Guar. Ass’n, Inc. v. Wilson, 2026 WL 1965807 (Fla. 4th DCA July 8, 2026);
Florida Ins. Guar. Ass’n v. Broome, 2026 WL 1993308 (Fla. 6th DCA July
10, 2026). Under this line of authority, we are compelled to reverse.
We note that decisions from this Court and the Fourth District Court of
Appeal contain fact scenarios where the settlement agreements were explicit
in their allocation of specific amount for attorney's fees. See, e.g., Ramos,
427 So. 3d at 190 (“[T]he settlement agreement expressly stated that
$27,000 should be paid to Appellees’ attorney for attorneys’ fees and costs
. . . .”); Waterfire Rest., LLC, 427 So. 3d at, 997 (“The settlement agreement
and release required the insurer to issue one check for $4,000 payable to
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Waterfire ‘for indemnity benefits under all Coverages of the POLICY,’ and
another check for $3,000 payable to Waterfire's counsel 'for attorney's fees
and costs.’”); Cadet, 431 So. 3d at 277 (“[I]n consideration of the sum of
FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00), which is
broken down as follows: Twenty Two Thousand Four Hundred Ninety Six
and Sixty Four Cents ($22,496.64) made payable to Steve Cadet, TD Bank,
and Space Coast Credit Union; Twenty Seven Thousand Five Hundred
Three Dollars and Thirty Six Cents ($27,503.36) made payable to Maranges,
PLLC, Trust Account, which includes attorneys’ fees and costs, and other
good and valuable consideration.”)(emphasis omitted)); Wilson, 2026 WL
1965807, at *1 (“The Insured and the insurer signed a settlement agreement
and general release which provided that the settlement amount of $65,000
be paid by two checks: (1) one for $43,500 to the Insured, the mortgage
company, and the public adjuster, and (2) another for $21,500 to the
Insured's attorneys.” Although the settlement Simmons entered into with
UPC was not as clear, it appears the $75,000 included attorney’s fees.
It is undisputed that Simmons pled entitlement to section 627.48 fees
in her complaint. “A general settlement will be presumed to include all
existing demands between the parties, imposing on the party claiming that
certain items were not included the burden of proving that fact.” Wilson, 2026
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WL 1965807, at *2 (quoting Wade v. Wade, 63 So. 2d 184, 185 (Fla. 1953))
(emphasis in original). The settlement documents and communications in
the record reinforces this presumption. In addition, Simmons’ motion to
substitute the defendant and enforce the settlement agreement
acknowledged that “[t]he three different checks were upon the request of
Plaintiff to make it easier for them to pay their contractually owed contingent
attorney's fees and costs.” The mediator’s written confirmation email stated,
“This will confirm settlement of all potential aspects of this claim in the total
amount of $75,000.00, new money, inclusive of fees and costs . . . .
Settlement expressly includes the charging lien from The Diener Firm.”);
(“[F]eel free to play with the payees in light of the charging lien as I have
penciled in Diener as one of the payees on the fee check . . . .”). The
mediation agreement likewise notes that “Settlement includes the charging
lien from The Diener Firm.” Thus, the check allocated to the Denier Law Firm
for $15,000 clearly was for attorney’s fees.
At the hearing on Simmons’ motion, her current counsel, Mr. Cankaya,
admitted that part of the settlement amount was for attorney’s fees, in
addition to the fees for Simmons’ public adjuster. Mr. Cankaya stated that
“these checks that were issued to his firm and my firm were not just checks
that the client was paying us for fees, it included other parties’ money as
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well.” Thus, there is an admission on the record that at least part of the
payment was for attorney’s fees. Simmons’ counsel’s concession, together
with the email exchanges reflecting the attorneys’ fees component, confirms
that at least some parts of the lump sum settlement represented attorney’s
fees.
Simmons’ argument that those fees may have been negotiated as part
of a global settlement agreement does not alter our analysis. Where the
insured has pled section 627.48 fees and the settlement includes a separate
payment to the insured’s counsel or otherwise indicates an attorney’s fees
component, courts have treated the fee portion as attorney’s fees for
purposes of FIGA’s covered claim limitations. See Ramos, 427 So. 3d at 190
(“The Appellees’ complaint pled entitlement to attorneys’ fees pursuant to
section 627.428. The parties then entered into a settlement agreement to
end the litigation. And the only legal basis for the insurance company owing
Appellees attorneys’ fees was section 627.428.”); Wilson, 2026 WL
1965807, at *3 (“[W]e cannot conceive of any other explanation for the
separate check to the law firm, nor have the insureds provided an
explanation other than the obvious - - the separate check was for attorney's
fees.” (quoting Hintz, 2026 WL 1742205 *3)).
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The trial court granted Simmons’ motion to enforce citing to “these
really specific facts” and the settlement agreement’s “generic” reference to
$75,000 without apportioning what amounts were to be paid to the public
adjuster or current counsel. The trial court was not clear as to what portion
constituted attorney’s fees and thus based its ruling on that finding. However,
the absence of a clear allocation was not a basis for the trial court to enforce
the settlement, and the trial court erred because FIGA cannot be forced to
pay attorney's fees and costs arising from a settlement agreement where
those fees and costs are not covered by the insurance policy. Waterfire Rest.
LLC, 427 So. 3d at 999 (“[C]overed claims which FIGA pays must come from
coverage within the policy, and not merely from a post-loss settlement
agreement.”); Cadet, 431 So. 3d at 278 (“FIGA cannot be compelled to pay
the portion of the settlement amount attributable to ‘attorneys’ fees and costs,
and other good and valuable consideration’ because the insured has not
demonstrated that it was included within the risks taken and losses protected
against in the subject insurance policy.”); Broome, 2026 WL 1993308, at *1
(“[T]he . . . $35,613.31 allocated by the settlement agreement for payment of
Appellees’ pre-insolvency attorney's fees must still be excluded because the
attorney's fees in this case—which arise from a post-loss settlement
agreement between Appellees and their former insurer as opposed to
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coverage within the subject insurance policy—do not fall within the meaning
of a covered claim under section 631.54(4), Florida Statutes (2022).”).
Moreover, because Simmons sought attorneys’ fees in her complaint
and moved to compel payment of the settlement, she had the burden of proof
to show that the written settlement confirmation of the terms of the settlement
and the general release did not include attorney’s fees – or at a minimum,
that the amounts payable via the checks to counsel were not fees. In Wilson,
2026 WL 1965807 at *2, the Fourth District Court of Appeal held that since
“the Insured sought attorney’s fees in his complaint[,] . . . a presumption
arose that the settlement agreement included attorneys’ fees,” citing to
Wade, 63 So. 2d at 185. The Wilson Court went on to hold that “the Insured
had the burden to show that the settlement amount did not include attorneys’
fees, and the Insured failed to meet that burden.” Wilson, 2026 WL 1965807
at *3 (citing to Wade, supra). Here, the mediator’s confirmation email, the
charging lien references, the multiple check structure, and counsel’s
admission at the hearing all point otherwise.
CONCLUSION
The trial court erred in granting Simmons’ motion to enforce to the
extent it required FIGA to pay attorney’s fees and costs that are not within
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the coverage of the insurance policy and are thus not covered claims under
section 631.54(4), Florida Statutes. We reverse and remand for an
evidentiary hearing to determine whether any portion of the payments to the
attorneys was for attorney’s fees and if any such payments were not for
attorney’s fees, to determine whether those portions were payments that
resulted from coverage provided by the insurance contract. 2
Reversed and remanded with instructions.
2
Our opinion should not be construed as having any preclusive impact on any contingency arrangement between the insured and her counsel.
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